Stifling Free Speech? California Looks to Ban Confederate Flag

Wednesday, 27 Aug 2014 10:16 PM

By Johnny Kampis,

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California is looking to bar the "Stars and Bars."

A bill sits on Gov. Jerry Brown's desk to ban California from displaying or selling the Confederate flag — or objects with images of it. The state Legislature passed the bill nearly unanimously last week.

Assemblyman Isadore Hall III, D-Compton, introduced the legislation after his mother discovered the Capitol gift shop sold a replica of Confederate money that contained a picture of the flag, according to the L.A. Times.

The lone dissenting vote among the 67 cast was from former California GOP gubernatorial candidate Tim Donnelly of Twin Peaks. He argued the bill would infringe on free speech.

"I'm a strict Constitutionalist," he told the Times. "It's painful and lonely."

Hall thanked his fellow lawmakers for "standing together united to fend off the ugly hatred of racism that's been portrayed and demonstrated through the emblem of the Confederacy."

The flag is, to be sure, divisive. In the South, some fly it as a nod to their roots — the "Stars and Bars" or variations of it are used as the state flag in a few states, including Alabama, Florida, and Mississippi. Others use the flag as the symbol of racism that Hall, a black man, decries.

But the First Amendment offers strong protections for such free speech. Could this law be a violation of those constitutional rights even though it doesn't apply to individuals?

"It's complicated," said Peter Scheer, executive director of the San Rafael, California-based First Amendment Coalition.

He told the law could be seen as a form of government expression, which is constitutionally protected, but on the other hand there are limits on this doctrine of government speech.

Scheer imagines a situation in which a law did the opposite of this one — that required the flying of the Confederate flag next to the California flag on state government buildings, including public schools.

"Would that be copacetic under the First Amendment?" he asked. "I'm not so sure.

"Some government speech, even though protected under the First Amendment, may still be challenged as violating citizens' First Amendment rights on the theory that citizens are associated, against their will, with an official point of view with which they strongly disagree."

California's ban wouldn't apply to images of the Confederate flag found in books or state museums if displayed for historical or educational purposes.

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